Federal Evidence Review

Seventh Circuit determines that admission of an audiotape of robbery defendant beating and threatening the life of a potential witness was a “close[ ] call” but that its probative value in suggesting defendant’s guilty conscience “cannot be genuinely disputed” and that this evidence was not unfairly prejudicial despite the fact that one could hear the sounds of the beatings on the recording, in United States v. Calabrese, 572 F.3d 362 (7th Cir. July 14, 2009) (No. 08-2861)

It is well-accepted that evidence of witness intimidation is probative of a defendant’s consciousness of guilt. In a related vein, this is one reason that the Supreme Court recently endorsed the rationale behind FRE 804(b)(6) (Forfeiture by wrongdoing) in which a party that engages in “wrongdoing … intended to … procure the unavailability” of a hearsay declarant as a witness is deemed to allow the admission of the statement they tried to prevent. See Giles v. California, 554 U.S. _, 128 S.Ct. 2678, 2693 (2008) (“Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant” to a court’s “finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution-rendering her prior statements admissible under the forfeiture doctrine.”).

As with other admissible evidence, at what point can consciousness of guilt evidence be unfairly prejudicial? The Seventh Circuit recently considered this issue and found that the FRE 403 balance of probative value of the evidence against the likelihood of unfair prejudice was completely adequate to determine the question. Given the abuse of discretion standard, only if “‘no reasonable person could take the view adopted by the trial court,’” would error be found. Calabrese, 572 F.3d at 368 (quoting United States v. Ozuna, 561 F.3d 728, 738 (7th Cir. 2009) (“We review a district court's evidentiary determinations for an abuse of discretion and reverse only ‘when no reasonable person could take the view adopted by the trial court.’”)). In Calabrese, even sounds of the beatings the defendants administered to a potential witness, would not stand in the way of the admitting this evidence of their consciousness of guilt.

In the case, defendant Calabrese appealed his conviction for robbery, presenting “facts [that] read like a Nicholas Pileggi/Martin Scorsese screenplay.” Calabrese, 572 F.3d at 364. The jury that convicted the defendant heard evidence of “tales of violence that made Calabrese look like Tommy DeVito come back to life” in that “robberies were orchestrated by Calabrese from the back office of his auto shop (Tony C's First Impressions)…. Afterwards, however, police nabbed one of the [robbery] crew members and persuaded him to cooperate. The main target was Calabrese…. Outfitting the cooperating witness with a wire-and turning other crew members in the meantime-the police eventually gained enough evidence to charge Calabrese with the robberies.” Calabrese, 572 F.3d at 364 (footnote omitted).

The jury heard “testimony [that] overwhelmingly portrayed Calabrese as a ruthless crook constantly on the prowl for new scores. And if there were any doubt about just how violent he was, a recorded conversation made it clear as day,” in the form of an audio recording of one of the defendant’s associates, Frank, who was now cooperating with police. The defendant was “concerned that Frank was cooperating with authorities, maybe even wearing a wire. [His] instinct[ ] [was] right, of course, but despite searching Frank they never found the bug. Instead, the wire captured the whole conversation, including references to crime, death threats to Frank, and a few knocks so he wouldn't forget.”

The circuit provided an excerpt of the audiotape of the beating, which it characterized as “pretty awful.” Calabrese, 572 F.3d at 367. The circuit rejected the defendant’s contention that the trial court erred in admitting the audiotape. The circuit based this on several grounds. First, it rejected that the audiotape was not relevant. According to the circuit, the audiotape’s:

“Relevance cannot be genuinely disputed; we have repeatedly observed that intimidation of a witness suggests consciousness of guilt, and the inference holds true in this case. There's just not much to the argument that the conversation lacked relevance because it didn't explicitly refer to one of the crimes at issue. As a practical matter, specifics were unlikely to come up because Calabrese was worried about a wire. And the possibility that they were talking about another crime only made the conversation incrementally less relevant, not irrelevant altogether.”

Calabrese, 572 F.3d at 368 (citing United States v. Miller, 276 F.3d 370, 373 (7th Cir. 2002) (“Here, the government argues that Tom Miller's threat against Weldy was admissible to show that Susan Miller was conscious of her guilt. Evidence that the defendant threatened a potential witness or a person cooperating with a government investigation is relevant to show the defendant's consciousness of guilt.”)).

Because the audiotape conversation was relevant and the trial judge excised “the worst parts” the circuit concluded that its probative value was not substantially outweighed by the danger of unfair prejudice under FRE 403, although it was a “closer call.” As explained by the circuit:

“Letting the jury hear the sounds of the beating [of Frank], as opposed to providing a transcript, might, in some minds, seem over the top. But the judge might have reasonably thought that the tape worked better overall. Voices can reveal meaning that words alone might mask (e.g., insincerity when Calabrese insisted, ‘There ain't no seriousness.’), and the beating showed just how concerned Calabrese really was. True, a reasonable judge could have decided to use a transcript instead, or even to eliminate some of the vulgarities, but that's just the point-reasonable minds can differ. There was no abuse of discretion.”

Calabrese, 572 F.3d at 369.

Judge Evans’ opinion in Calabrese often makes for an entertaining read, with its occasional references to mob movies and literature. But the important lesson suggested by the case is that admissibility of the audiotape was not mandatory. The opinion makes it quite clear that it was a “close[ ] call” and that another trial judge might have considered the sounds of the witness being beaten by the defendant as significantly outweighing the probative value of the audiotape and that it would not be an error to exclude it, or in the alternative have it admitted as a transcript.